Embedding Is Not Piracy, Appeals Court Rules

Appeals court rules in favour of video bookmarking site myVidster, saying that embedding a video is not the same as reproducing the video

Judge Richard Posner of the Seventh Circuit Court of Appeals has handed down a ruling that seriously harms the film industry's attempts to make embedding of infringing content a copyright offence.

Ruling on an appeal in the contentious 'Flava Works, Inc v. Gunter' case, Judge Posner, writing the ruling by a three-judge panel, says that viewing infringing content is not the same as copying.

Marques Gunter is the owner of video bookmarking website myVidster. myVidster operates as a video bookmarking websites, allowing others to embed videos and share with others. Some of the materials bookmarked included copyrighted materials from adult entertainment company Flava Works, who then promptly sued Gunter for copyright infringement. A lower court ruling by Judge John F. Grady initially favoured Flava Works, and the appeal of ruling saw industry heavyweights including the MPAA, Google and Facebook all wade into the debate, presenting amicus briefs in support and in opposition of the Grady decision.

The appeals court this week found Grady's earlier ruling to be inconsistent with earlier precedents, and made further attempts to clarify the differences between copying, viewing and public performances.

In his written ruling, Judge Posner equated the actions of a visitor who viewed infringing content on myVidster as equivalent to "stealing a copyrighted book from a bookstore and reading it", which while a "bad thing", is not "copyright infringement". "The infringer is the customer of Flava who copied Flava’s copyrighted video by uploading it to the Internet," the ruling went on to clarify.

As for the claim that myVidster helped to induce piracy by encouraging users to link to and embed infringing videos, Posner again sided with the website. While Flava has suffered monetary losses as a result of myVidster's actions, "unless those visitors copy the videos they are viewing on the infringers’ websites, myVidster isn’t increasing the amount of infringement," Posner wrote.

In other words, the only act of copyright infringement in relation to unauthorized reproduction and distribution was done by the customer of Flava who captured and uploaded the infringing video in the first place, and as long as Gunter and myVidster did not reproduce further copies of the video, then this kind of infringement does not apply.

If myVidster did not reproduce content owned by Flava, then the other claim by Flava is that myVidster's showing of the content constitutes a public performance. Posners contends that uploading plus bookmarking can be interpreted as a public performance, but as myVidster is not responsible for the upload, then this interpretation does not help Flava's claims. The other interpretation of a public performance is the one that defines it as the transmission between myVidster's website and the user's computer, but Posner states that Flava has not proven its case in this area.

While the ruling clarifies several issues relating to video bookmarking websites, Judge Posner felt that there's a need for further clarifications to be written into existing copyright laws. "Legislative clarification of the public-performance provision of the Copyright Act would be most welcome," the ruling noted.